Bill Summary – FastDemocracy

HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     CS/HB 1475 Cleanup of Perfluoroalkyl and Polyfluoroalkyl Substances
SPONSOR(S): State Affairs Committee, McClure, Overdorf and others
TIED BILLS:       IDEN./SIM. BILLS: SB 1418, SB 7012
    REFERENCE                                                   ACTION                  ANALYST            STAFF DIRECTOR or
                                                                                                           BUDGET/POLICY CHIEF
    1) Environment, Agriculture & Flooding                      17 Y, 0 N               Gawin              Moore
       Subcommittee
    2) Agriculture & Natural Resources Appropriations           14 Y, 0 N               White              Pigott
       Subcommittee
    3) State Affairs Committee                                  23 Y, 0 N, As CS        Gawin              Williamson
                                              SUMMARY ANALYSIS
Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) are a group of thousands of man-made chemical
compounds developed to provide oil and water repellency, chemical and thermal stability, and friction
reduction. Perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) are the most common and
the best-studied of these compounds. PFAS began being widely used in the 1950s, with applications in many
industries, including the aerospace, semiconductor, medical, automotive, construction, electronics, and
aviation industries, as well as in consumer products and firefighting foams. While U.S. manufacturers have
voluntarily phased out use of the chemicals, they persist in the environment, particularly at fire colleges,
airports, and military installations. PFAS chemicals do not break down in the environment, can move through
soil and water, and can accumulate in fish and wildlife. Due to their widespread use and ease of transport, they
can be found virtually everywhere.
The bill requires DEP to adopt by rule statewide cleanup target levels for PFAS in drinking water, groundwater,
and soil using specified statutory criteria, with priority given to PFOA and PFOS, if the United States
Environmental Protection Agency does not finalize its standards for PFAS in drinking water, groundwater, and
soil by January 1, 2025. The bill requires the rules to be ratified by the Legislature in order to take effect.
The bill specifies that until DEP’s rule has been ratified by the Legislature, a governmental entity or private
water supplier may not be subject to any administrative or judicial action brought by any state or local
governmental entity to compel or enjoin site rehabilitation, to require payment for the cost of rehabilitation of
environmental contamination, or to require payment of any fines or penalties regarding rehabilitation based on
the presence of that particular PFAS constituent.
The bill may have an insignificant fiscal impact on the state that can be absorbed within existing resources.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/24/2022
                                                      FULL ANALYSIS
                                               I. SUBSTANTIVE ANALYSIS
    A. EFFECT OF PROPOSED CHANGES:
        Background
        Perfluoroalkyl and Polyfluoroalkyl Substances
        Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) are a group of thousands of man-made chemical
        compounds developed to provide oil and water repellency, chemical and thermal stability, and friction
        reduction.1 Perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) are the most
        common and the best-studied of these compounds.2 PFAS began being widely used in the 1950s, with
        applications in many industries, including the aerospace, semiconductor, medical, automotive,
        construction, electronics, and aviation industries, as well as in consumer products and firefighting
        foams.3 While U.S. manufacturers have voluntarily phased out use of the chemicals, 4 they persist in the
        environment, particularly at fire colleges, airports, and military installations where firefighting foam is
        frequently used.5 Although PFOA and PFOS are no longer manufactured in the U.S., they are still
        produced internationally and can be imported into the U.S. in consumer goods such as carpet, leather
        and apparel, textiles, paper and packaging, coatings, rubber, and plastics. 6
        PFAS chemicals do not break down in the environment, can move through soil and water, and can
        accumulate in fish and wildlife.7 Due to their widespread use and ease of transport, they can be found
        virtually everywhere. The Centers for Disease Control and Prevention (CDC) has detected PFAS in
        nearly all persons it has tested, indicating widespread exposure in the U.S. population.8 The CDC
        indicated that it is still uncertain how low exposure to PFAS could impact humans, but it is possible that
        higher levels could lead to a variety of health issues such as increased risk of certain cancers,
        increased cholesterol levels, impacts on hormones and the immune system, and fetal and infant
        developmental effects.9
        Federal Regulation of PFAS
        The United States Environmental Protection Agency (EPA) prioritizes research and data collection for
        new chemicals that are being discovered in water that previously had not been detected or are being
        detected at levels that may be higher than expected.10 These are called “contaminants of emerging
        concern” (CEC). While CECs do not have regulatory limits, there may be a long-term potential risk to
        human health or the environment associated with them. As part of the EPA’s data collection on CECs,
1 Interstate Technology Regulatory Council (ITRC), History and Use of PFAS, 1 (2020), available at https://pfas-1.itrcweb.org/wp-
content/uploads/2020/10/history_and_use_508_2020Aug_Final.pdf (last visited Jan. 23, 2022).
2 Dep’t of Health (DOH), PFAS Chemical Awareness, http://www.floridahealth.gov/environmental-health/hazardous-waste-
sites/contaminant-facts/_documents/doh-pfas-poster.pdf (last visited Jan. 23, 2022).
3 ITRC, History and Use of PFAS, 1, 3 (2020), available at https://pfas-1.itrcweb.org/wp-content/uploads/2020/10/
history_and_use_508_2020Aug_Final.pdf (last visited Jan. 23, 2022).
4 United States Environmental Protection Agency (EPA), Risk Management for Per- and Polyfluoroalkyl Substances (PFAS) under
TSCA, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-management-and-polyfluoroalkyl-substances-
pfas#:~:text=On%20October%209%2C%202007%2C%20EPA,2007%20SNUR%20for%20183%20chemicals.&text =Any%20other%
20uses%20of%20these,and%20review%20by%20the%20Agency. (last visited Jan. 23, 2022). In the U.S., PFOS was phased out of
production around 2002, and PFOA was phased out around 2015.
5 EPA, PFAS Explained, https://www.epa.gov/pfas/pfas-explained (last visited Jan. 23, 2022); EPA, Our Current Understanding of
the Human Health and Environmental Risks of PFAS, https://www.epa.gov/pfas/our-current-understanding-human-health-and-
environmental-risks-pfas (last visited Jan. 23, 2022).
6 Id.
7 Centers for Disease Control and Prevention, Per- and Polyfluorinated Substances (PFAS) Factsheet, https://www.cdc.
gov/biomonitoring/PFAS_FactSheet.html (last visited Jan. 23, 2022).
8 Id.
9 DOH, PFAS Chemical Awareness, 2, http://www.floridahealth.gov/environmental-health/hazardous-waste-sites/contaminant-
facts/_documents/doh-pfas-poster.pdf (last visited Jan. 23, 2022).
10 DEP, Regulated Drinking Water Contaminants and Contaminants of Emerging Concern , https://floridadep.gov/
comm/press-office/content/regulated-drinking-water-contaminants-and-contaminants-emerging-concern (last visited Jan. 23, 2022).
STORAGE NAME: h1475e.SAC                                                                                                  PAGE: 2
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        all large and selected smaller public water systems across the U.S. are required to monitor for CECs. 11
        The EPA’s draft list of the next 30 CECs includes 29 types of PFAS and lithium. 12 If approved, these
        chemicals will be monitored starting in 2023 through 2025. 13
        Once the EPA’s study and evaluation of a particular CEC is complete, if the EPA decides not to
        regulate the CEC, then it may decide to develop a health advisory level (HAL) for the detected
        contaminant. While HALs are non-enforceable federal limits, they serve as technical guidance for
        federal, state, and local officials.14 For drinking water, the EPA has established a HAL of 70 parts per
        trillion for PFOA and PFOS.15 The Florida Department of Health (DOH) has adopted the same HAL for
        those compounds.16
        State Regulations
        Cleanup Target Levels
        A cleanup target level (CTL) is the concentration for each contaminant identified by an applicable
        analytical test method, in the medium of concern, at which a site rehabilitation program is deemed
        complete.17 The Department of Environmental Protection (DEP) establishes CTLs by rule for specific
        contaminants.18 These CTLs apply to requirements for site rehabilitation across numerous programs.
        Contaminated Site Cleanup
        Risk-Based Corrective Action (RBCA) is a decision-making process that combines site assessments
        and responses to chemical releases with human health and environmental risk assessments to
        determine the need for remedial action and tailor corrective actions to site-specific conditions and risks,
        which can vary greatly.19
        In 2003, the Legislature established a “global” RBCA process for the state.20 It created a flexible site-
        specific cleanup process reflecting the intended use of the property following cleanup, while maintaining
        adequate protection of human health, safety, and the environment through the evaluation of
        contamination toxicity and exposure pathways.21 All contaminated sites resulting from a discharge of
        pollutants or hazardous substances where legal responsibility for site rehabilitation exists, except for
        those contaminated sites subject to the RBCA cleanup criteria established for the petroleum,
        brownfields, and dry cleaning programs, must follow this process.22
        DEP is required to establish by rule criteria for determining, on a site-specific basis, the tasks
        comprising a site rehabilitation program and the level at which a task and a program may be deemed
        completed.23 DEP considers a variety of factors related to the current and potential risk of exposure to
11 Id.
12 Federal Register, Drinking Water Contaminant Candidate List 5-Draft,
https://www.federalregister.gov/documents/2021/07/19/2021-15121/drin king-water-contaminant-candidate-list-5-draft (last visited
Jan. 23, 2022).
13 Id.
14 EPA, How EPA Regulates Drinking Water Contaminants, https://www.epa.gov/dwregdev/how-epa-regulates-drinking-water-
contaminants (last visited Jan. 23, 2022).
15 EPA, Drinking Water Health Advisories for PFOA and PFOS , https://www.epa.gov/ground-water-and-drinking-water/drinking-
water-health-advisories-pfoa-and-pfos (last visited Jan. 23, 2022).
16 DOH, Maximum Contaminant Levels and Health Advisory Levels, 5 (2016) available at http://www.floridahealth.gov/
environmental-health/drinking-water/_documents/hal-list.pdf (last visited Jan. 23, 2022).
17 Section 376.301(8), F.S.
18 See generally ch. 62-777, Fla. Admin. Code.
19 DEP, Contaminated Soils Forum -- Policy Group, Waste Cleanup Focus Group, Issues paper-- “Universal” Applicability of Risk -
Based Correction Action at Florida Waste Cleanup Sites, 2 (1998), available at https://floridadep.gov/sites/default/files/Universal-
applicability-of-risk-based-corrective-action.pdf (last visited Jan. 23, 2022).
20 See ch. 2003-173, s. 1, Laws of Fla.
21 Ralph DeMeo et al., Risk-Based Corrective Action in Florida: How is it Working?, 89 FLORIDA BAR JOURNAL 1, 47 (Jan. 2015),
https://www.floridabar.org/the-florida-bar-journal/risk-based-corrective-action-in-flo rida-how-is-it-working/ (last visited Jan. 23,
2022).
22 Section 376.30701(1)(b), F.S.
23 Section 376.30701(2), F.S.
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         contaminants to determine and establish appropriate CTLs for groundwater and soil using RBCA
         principles.24
         Regulation of PFAS
         DEP has established provisional CTLs for PFAS to enable site cleanup under DEP’s contaminated site
         cleanup criteria.25 DEP has created numerical provisional CTLs and screening levels for PFOS and
         PFOA in provisional groundwater CTLs, provisional soil CTLs, provisional irrigation water screening
         levels, and surface water screening levels.26 These provisional standards are designed to protect
         human health, and the provisional groundwater CTLs are the same as the EPA’s HAL for drinking
         water.
         PFAS is common in firefighting foams that have been stored and used for fire suppression, fire training,
         and flammable vapor suppression.27 These firefighting agents include Class B fluorine-containing
         firefighting foams, such as aqueous film-forming foam (AFFF).28 DEP has assessed each fire training
         facility in the state to ensure that PFAS-containing firefighting agents are disposed of and that only
         firefighting agents that do not have PFAS are being used.29 Of the 25 active facilities in the state with
         known or suspected use of AFFF, investigations indicate that 22 of the 25 had analytical results for
         PFOA and PFOS above the provisional groundwater CTL. 30 Where contamination is identified, DEP will
         help the facility develop a cleanup plan to remove or contain the contamination to prevent future
         environmental impact and human exposure.31
         In February of 2021, DEP published the current version of its PFAS Dynamic Plan.32 The Dynamic Plan
         establishes a comprehensive path forward for addressing PFAS contamination in the state with the
         understanding that it may be necessary to change the approach as the science associated with these
         emerging contaminants continues to develop.33 The plan describes the current screening and
         provisional CTLs and summarizes data and lessons learned from prior and ongoing investigations into
         PFAS contamination. The plan states that future investigations will be based on potential risk and will
         include a continued coordinated response with DOH to quickly evaluate and address any impacts to
         drinking water resources.34
         Effect of the Bill
         The bill requires DEP to adopt by rule statewide cleanup target levels for PFAS in drinking water,
         groundwater, and soil using statutory RBCA criteria, with priority given to PFOA and PFOS, if the EPA
         does not finalize its standards for PFAS in drinking water, groundwater, and soil by January 1, 2025.
         The bill requires the rules for statewide cleanup target levels to be ratified by the Legislature in order to
         take effect.
         The bill specifies that until DEP’s rule has been ratified by the Legislature, a governmental entity or
         private water supplier may not be subject to any administrative or judicial action brought by any state or
         local governmental entity to compel or enjoin site rehabilitation, to require payment for the cost of
24 Section 376.30701(2)(a)-(i), F.S.
25 DEP, Per-and Polyfluoroalkyl Substances (PFAS) Dynamic Plan (Feb. 2021), available at https://floridadep.gov/
sites/default/files/Dynamic_Plan_Revised_Feb2021.pdf (last visited Jan. 23, 2022). See ch. 62-780, Fla. Admin. Code.
26 Id.
27 ITRC, PFAS, https://pfas-1.itrcweb.org/3-firefighting-foams/ (last visited Jan. 23, 2022).
28 Id.
29 DEP, Fire Training Facility Preliminary Site Assessments, https://floridadep.gov/waste/waste-cleanup/content/fire-training-facility-
preliminary-site-assessments (last visited Jan. 23, 2022).
30 DEP, Per-and Polyfluoroalkyl Substances (PFAS) Dynamic Plan , 12 (Feb. 2021), available at https://floridadep.gov/
sites/default/files/Dynamic_Plan_Revised_Feb2021.pdf (last visited Jan. 23, 2022).
31 DEP, Fire Training Facility Preliminary Site Assessments, https://floridadep.gov/waste/waste-cleanup/content/fire-training-facility-
preliminary-site-assessments (last visited Jan. 23, 2022).
32 See DEP, Per-and Polyfluoroalkyl Substances (PFAS) Dynamic Plan (Feb. 2021), available at https://floridadep.gov/
sites/default/files/Dynamic_Plan_Revised_Feb2021.pdf (last visited Jan. 23, 2022).
33 Id. at 3.
34 Id.
STORAGE NAME: h1475e.SAC                                                                                                       PAGE: 4
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       rehabilitation of environmental contamination, or to require payment of any fines or penalties regarding
       rehabilitation based on the presence of that particular PFAS constituent.
       The bill specifies that until site rehabilitation is completed or rules for statewide cleanup target levels
       are ratified by the Legislature, any statute of limitations that would bar a state or local government entity
       from pursuing relief in accordance with its existing authority is tolled from the effective date of the bill.
       The bill specifies that it does not affect the ability or authority to seek any recourse or relief from any
       person who may have liability with respect to a contaminated site and who did not receive protection
       under the bill.
   B. SECTION DIRECTORY:
       Section 1.     Creates s. 376.91, F.S., related to statewide cleanup of PFAS.
       Section 2.     Provides a directive to the Division of Law Revision.
       Section 3.     Provides an effective date of upon becoming a law.
                           II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
   A. FISCAL IMPACT ON STATE GOVERNMENT:
       1. Revenues:
           None.
       2. Expenditures:
           The bill may have an insignificant negative fiscal impact on DEP that can be absorbed within
           existing resources for the rulemaking requirements of the bill.
   B. FISCAL IMPACT ON LOCAL GOVERNMENTS: